Here we go again! Another toll road expansion gets to hopscotch ahead of the state’s major congestion priorities such as I-35 in Austin, Dallas, and San Antonio. The Texas Transportation Commission just approved spending $36.7 million in toll revenues to add another toll lane to the state operated section of SH 130 from SH 45N to Hwy 290 (the southern 41 miles is operated by a private corporation that emerged the winner in bankruptcy court despite the promise it would return to the public if it went bankrupt). More broken bureaucratic promises – shocking, right?

Buried in the commission agenda was a nebulous, generalized agenda item 3(a): ‘The construction of highways and other transportation facilities’ (see attached itemized list). After searching through 21 pages of projects, the Commission expects the public to discern what’s going on when it gives no project description and merely lists how much money the Commission is approving for each project. The word ‘toll’ is nowhere to be found, unlike past Commission agendas that clearly delineate toll projects under separate agenda items and have a specific minute order with detailed information about the project and the origin of the funds.

Gov. Greg Abbott and Lt. Gov. Dan Patrick drew a line in the sand last November to keep their no more toll roads campaign promises to Texans. Now, it appears the bureaucracies are going deep state trying to hide their actions from the general public in order to make an end run around the Governor and Lt. Governor’s clear directive against no new tolls.

In fact, the public has no way of knowing if this $36.7 million of funding for the SH 130 expansion is from our gas taxes or other state funds or both. Why? Because it’s not listed anywhere on last week’s agenda! Only by reading press reports does one find out that the funds are supposedly from the Central Texas Turnpike System itself (segments 1-4 of SH 130, SH 45 N, Loop 1, and SH 45 SE). So unless you’re a super sleuth, you’re in the dark – which means the Commission must answer for its public deception.

By every measure, this sneaky move by the Transportation Commission and TxDOT lacks transparency and appears to be an “in your face” violation of the Texas Open Meetings Act. A proper public meeting notice in compliance with the Texas Open Meetings Act must:

1) Contain the right balance of information, which means the notice must describe the subject matter that will be discussed or acted on with enough specificity that the general public will know what will be discussed or what type of action may be taken.2) Contain simple language, aimed at the general public. Meeting notices should use plain, concise wording and should avoid jargon or hyper-technical language that only someone intimately involved with the subject matter would understand.

Now, consider this development in light of what the last Sunset Commission Staff Report said about this agency, “TxDOT also continues to struggle with providing useful information and opportunities for meaningful public input.” It therefore comes as no surprise that the agency purposefully obfuscated critical information about the expansion of the SH 130 tollway. They just didn’t want the tiresome, pesky taxpayers and watchdogs who support the Governor and Lt. Governor’s “no new toll roads” position to find out they planned to ignore our top state officials.

Sadly, this tactic of obscuring toll road information from the public has become the norm. Traffic and “toll viability” revenue studies, which determine the actual financial viability of a project are also kept secret from the public until after the project is approved (when it’s too late). How did we get here?

In 2007, former Texas Gov. Rick Perry was successful in passing rushed legislation to make the traffic forecasts for toll roads exempt from public access. The public outcry against public-private partnerships had hit a feverish pitch, and a moratorium on the controversial contracts that privatize public highways in sweetheart deals for 50 years sailed through the legislature.

The biggest roadblock to making these toll studies public again is the literal army of lobbyists hired by government toll agencies to lobby against any legislation to make the studies open. Then when the toll roads go bankrupt (due to the lack of traffic on them), the taxpayers are left holding the bag – guaranteeing the debt or bailing them out in some fashion. Hiding the toll viability studies from the public makes legalized robbing of the taxpayers so much easier!

When the legislature passed the TxDOT Sunset Bill SB 312 last year, one of the toll road reforms was a requirement to repay any gas taxes used on toll projects to prevent double taxation. Knowing the source of funds used to expand SH 130 is of paramount concern to the public and our elected officials, the byzantine transportation bureaucracy sought to obscure that information at a time when they’re supposed to be implementing the long list of reforms laid out in SB 312.

In the next legislative session that begins January 2019, one of the top priorities for the grassroots will be to block TxDOT and toll agencies’ ability to continue charging tolls even after the debt is paid off (extending toll road revenue streams into perpetuity). In a scheme known as ‘system financing,’ toll entities can ensure a toll road is never paid for by linking its toll projects together into one financial system. This multi-leveraging scheme allows them to endlessly refinance debt or expand the toll system by using the toll revenue stream as collateral for more debt. This practice violates Article I, Section 26 of the Texas Constitution that prohibits perpetuities.

Expect a showdown to ensue over system financing to keep rogue local governments, toll agencies, the Transportation Commission and TxDOT from undermining the Texas Constitution and the will of Texans as expressed by their Governor and Lt. Governor.

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